Briefs & Comments

The Reporters Committee and 32 media organizations filed an amici brief in support of the Miami Herald’s appeal before the Second Circuit on its motion to unseal Giuffre v. Maxwell. The district court denied the Miami Herald's motion to unseal the underlying case, a defamation lawsuit brought by one of the alleged victims of sex trafficking by financier Jeffrey Epstein. The amici brief highlights the importance of public access to judicial records, arguing that the district court erred in dismissing the significant public interest in the records of this case. It further argues that the district court should have done an individualized right of access analysis on each judicial record, rather than authorizing blanket sealing and redaction.

The Reporters Committee and 33 media organizations filed an amicus brief in Kent v. Hennelly, a case before the Sixth Circuit. The plaintiff filed a lawsuit in a federal court in Tennessee against a South Carolina-based defendant, alleging that the defendant's online comments made on Facebook were defamatory. The district court dismissed for lack of personal jurisdiction. The amicus brief argues that the Sixth Circuit should affirm the district court and hold that courts cannot assert personal jurisdiction over defamation defendants solely because public comments they made over the internet are available in the forum state. The mere availability of comments online does is not enough to provide jurisdiction, and could subject journalists and news organizations who publish content online to jurisdiction in every state.

The Reporters Committee and 39 media organizations filed an amicus brief in the Fifth Circuit in Van Dyke v. Retzlaff. The defendant appealed to the Fifth Circuit after the district court denied his TCPA motion to dismiss, holding that the TCPA does not apply in federal court. The amicus brief argues that the TCPA, like other state anti-SLAPP statutes, should apply in federal court because it provides substantive protections for First Amendment freedoms, including those of media organizations retaliated against for reporting on matters of public concern. Attorneys from Vinson & Elkins LLP served as local counsel on the amicus brief.

The Reporters Committee and eight media organizations filed an amicus letter to the California Supreme Court in National Lawyers Guild v. City of Hayward. The letter urges the California Supreme Court to review a Court of Appeal decision allowing the City to charge nearly $3,000 for redacting police body-worn camera footage of a protest. The California Public Records Act allows government agencies to charge requesters for the costs of "extracting" a record, and the Court of Appeal erroneously equated redacting a video to extraction of a record. The letter argues that these prohibitive fees will greatly limit public access to body-worn camera footage and is contrary to the purposes and language of the CPRA.

The Reporters Committee and 19 other media organizations filed an amicus brief in support of reporter Jamie Kalven, who was subpoenaed to testify in Illinois v. March by the defendant, former Chicago police detective David March. March and two other officers are facing trial for allegedly conspiring to obstruct justice in the investigation of a fellow officer, Jason Van Dyke, who shot and killed Laquan McDonald, an African American teenager. Kalven's 2015 reporting revealed facts about the shooting that contradicted the official police account and ultimately led to the release of a police video of the incident and Van Dyke's and March's prosecutions. Kalven was also subpoenaed by Van Dyke during his criminal case last year, but the judge in that case granted Kalven's motion to quash the subpoena. The Reporters Committee and a similar media coalition also filed an amicus brief in that case.

The Reporters Committee filed comments on proposed updates to the Food and Drug Administration's ("FDA") regulations implmenting the Freedom of Information Act ("FOIA"). RCFP's comments recommend that the FDA modify the proposed rule to address FOIA's foreseeable harm standard, timing requirements, and to ensure that the FDA does not ask state or local governmental entites to enter into contracts that would violate state law.

The Reporters Committee filed an amicus brief in support of CNN and Jim Acosta's lawsuit against the White House concerning the revocation of Acosta's White House press credentials. The brief argues that the revocation of Acosta's credentials tramples on the Constitution— in particular the First Amendment's guarantee of freedom of speech and of the press — and could have a chilling effect on other journalists. The brief argues that retaliating against Acosta and CNN for constitutionally protected newsgathering and questioning of government officials violates key First Amendment rights. The brief concludes by asking the court to grant, as quickly as possible, the restoration of Acosta's White House press credentials. The Reporters Committee was represented on the brief by the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center.

RCFP and a coalition of 36 media organizations filed an amicus brief in support of HD Media Company and the Washington Post in In re National Prescription Opiate Litigation in the Sixth Circuit. The brief urged the Sixth Circuit to vacate the district court's protective order, which bars hundreds of public entity plaintiffs in a multi-district litigation from disclosing key historical opiate prescription data that they received from the Drug Enforcement Administration during discovery. In this litigation, approximately 1,300 mostly governmental entities--including at least six states and hundreds of cities, counties, and Native American tribes--have sued the pharmaceutical manufacturers, distributors, and pharmacies for their role in the national prescription opiate crisis.

The Reporters Committee and 13 media organizations filed an amicus letter to the California Supreme Court in Sander v. State Bar of California. The letter urges the California Supreme Court to review a Court of Appeal decision which held that the California State Bar was not obligated to anonymize a database concerning bar applicants in response to a California Public Records Act request from Richard Sander and the First Amendment Coalition, because the Court of Appeal held that anonymization requires creation of a new record. The letter argues that this decision will limit public access to large government databases moving forward and is contrary to the purposes and language of the CPRA.

The Reporters Committee and 47 media organizations filed an amici brief in support of TheColorado Independent's petition for cert to the U.S. Supreme Court in a case addressing whether a qualified First Amendment right of access applies to criminal court records.

The Reporters Committee and a coalition of news media organizations filed an amicus brief in support of the Mayor of New York City, the Commissioner of the New York City Police Department, and the NYPD arguing (1) that policy body-worn camera (BWC) videos are not exempt from New York's Freedom of Information Law (FOIL) under Civil Rights Law Section 50-a, and (2) even assuming, arguendo, that BWC videos are exempt from disclosure under that provision the City has discretion to release such footage.

The Reporters Committee filed an amicus brief in federal district court in Minnesota in advance of the sentencing of Terry Albury, a former FBI agent who was charged under the Espionage Act for disclosing information to the news media and pled guilty. The brief offered the court a historical perspective on using the Espionage Act in leak cases, and argued that the routine use of the Espionage Act to punish leaks could chill newsgathering and the public’s right to know about government activities. The brief also noted that the relevant federal sentencing guideline is based almost exclusively on spying cases, not media disclosure matters (as there was only one successful conviction when the guideline was written in 1987).

The Reporters Committee and 21 media organizations filed an amicus brief in support of Defendants-Appellees after the National Rifle Association and two anonymous individual plaintiffs appealed the district court's denial of plaintiffs' petition to permit the anonymous individual plaintiffs to proceed in the litigation under pseudonyms. The amicus brief argues that permitting the two individual plaintiffs to proceed using pseudonyms would hinder the ability of the press to report on this case because maintaining their anonymity would likely require the court to redact or seal filings and/or close the courtroom during proceedings, contrary to the presumptions of public access guaranteed by both the First Amendment and common law.

The Reporters Committee filed an amicus brief in the D.C. Circuit in United States v. AT&T Inc, a case concerning the merger of AT&T and Time Warner. The amicus brief takes no position on the merits of the district court's decision regarding the merger. It argues that the district court erred in denying AT&T’s motion for discovery on its selective enforcement defense and that the district court’s ruling could bar discovery in other cases involving news media organizations even where there is strong evidence of discriminatory intent. The brief highlights the extraordinary context in which this case arises, including attacks by President Trump on CNN and other news organizations, and argues that there was sufficient evidence to permit discovery in this case.

The Reporters Committee submitted comments regarding the Office of Management and Budget's proposed updates to its Freedom of Information Act (FOIA) regulations. The comments recommend that OMB's modify the proposed rule in numerous ways, including conforming to FOIA's definition of "representative of the news media", ensuring it is consistent with D.C. Circuit precedent on "determinations", and adding language implementing the foreseeable harm standard.